Q: I have a question about MSAs in general and when certain types of treatment need to be included in the allocation. Often I see that an injured person has been authorized for surgery but adamantly refuses the treatment for whatever reason. Must the cost of the potential but unwanted surgery still have to be factored into any settlement?

A: Currently in workers’ compensation settlements that are eligible for Medicare review, CMS’s stand has always been if a surgery was recommended by a treating physician, then it must have been “medically necessary.” Claimant is within his rights to refuse a surgical recommendation. However, regardless of the desires of the claimant, there may come a time where the pain will become intolerable and that surgery will become imperative. It is then that Medicare will raise an eyebrow. Medicare’s stance will be why should it pay for a surgery that was anticipated at the time of the insurance settlement? CMS will see this as a disregard of its interests contrary to the Medicare Secondary Payer Act.

Also be aware that the opposite is true as well. Claimant desperately wants surgery and will continue to seek a surgeon until he gets the recommendation. If co-morbidities make the surgery risky, it has no good prognosis of success, or it is not medically necessary but someone agreed to do it, that does not elevate to a category that CMS would expect to see in an MSA.

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Click here to track the status of Bill H.R. 2649:
To amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers' compensation settlement agreements and qualified Medicare set-aside provisions